Since 1977, Jon Michael Probstein has assisted people and businesses in all matters. In accordance with the Rules of Professional Conduct, this may be deemed "Attorney Advertising". Nothing contained herein should be construed as legal advice. Always consult a lawyer regarding any matter. Call 888 795-4555 or 212 972-3250 or 516 690-9780. Fax 212 202-6495. Email jmp@jmpattorney.com

Friday, July 29, 2016

According to Wiki: "Grey divorce is a term referring to the demographic trend of an increasing divorce rate for older ("grey-haired") couples in long-lasting marriages. Former American vice-presidential couple Tipper and Al Gore's decision to separate after over 40 years of marriage is an example of this trend."

Recently many articles are coming out by firms discussing this trend following this months article in Forbes "Gray Divorce: A Financial Double Whammy For Women"s

Thursday, July 28, 2016

"As to whether plaintiff is entitled to treble damages under Real Property Actions and Proceedings Law § 853, the statute provides:

"If a person is disseized, ejected, or put out of real property in a forcible or unlawful manner, or, after he has been put out, is held and kept out by force or by putting him in fear of personal violence or by unlawful means, he is entitled to recover treble damages in an action therefor against the wrong-doer."

In Mayes, this Court, without ultimately reaching the issue, acknowledged that "[t]he [1981] amendment to the statute has resulted in some variation in the criteria applied in assessing treble damages against a wrongdoer" (280 AD2d at 160). Since 1981, courts have framed the issue as whether, under RPAPL 853, an award of treble damages is discretionary or mandatory in cases where the record establishes forcible or unlawful entry into real property. Although this Court has not decided the issue, the Appellate Division, Second Department, and the Supreme Court, New York County, have determined that the legislature intended to leave the question of whether treble damages should be awarded, pursuant to RPAPL 853, to the discretion of the court (Lyke, 147 AD2d at 28; Mannion, 134 Misc 2d at 1064)[1]. In fact, plaintiff here does not advocate that he is automatically entitled to recovery under RPAPL 853, simply because he prevailed on his wrongful eviction claim, but rather takes the position that the decision to award treble damages is a matter left to the Court's discretion. Therefore, the issue of whether the statute mandates treble damages is not specifically before us and we need not reach it[2] . In any event, plaintiff should prevail here under either interpretation of the statute.

Plaintiff cites to this Court's decision in Rocke v 1041 Bushwick Ave. Assoc. (169 AD2d 525 [1st Dept 1991]), affirming the trial court's award of treble damages pursuant to RPAPL 853 where the record showed that while the plaintiff was out of her apartment, the building superintendent moved her belongings to the basement and changed her apartment door lock. The record there also contained evidence sufficient to allow a jury to conclude that the building superintendent did this on instructions from the building's manager, who was a friend of the plaintiff's ex-husband, with whom the plaintiff had recently had an argument. Here, defendants did not dispute plaintiff's allegations that after executing a lease extension, which defendants wanted to rescind, he returned home and found defendants in the process of changing the dead bolt lock on his front door, despite the fact that they had not commenced legal proceedings to evict him and did not have permission to enter the apartment. Plaintiff also alleged, and provided an affidavit supporting his claim, that all of his personal effects, clothing, valuable jewelry, electronics and other possessions were removed from the apartment, and his demands for the location and return of his property were refused by defendants for at least a month.

Defendants do not oppose plaintiff's request for treble damages on the merits. Instead, defendants argue that it is premature to reach the issue because there are conflicting facts and a trial is needed. Since we have already found, infra, that plaintiff was properly awarded summary judgment on liability and there has been a hearing on actual damages, the record is sufficiently developed to determine treble damages (cf. Mayes, 280 AD2d at 161 [declining to reach the issue of treble damages where "no damages have been assessed, and the propriety of the imposition of treble damages against any defendant remains to be evaluated upon a full record after trial"]). Accordingly, under the circumstances presented here, we find that the trial court's denial of treble damages under RPAPL 853 was improvident and plaintiff is entitled to treble damages on his damages award of $6,700 (Rocke, 169 AD2d at 525; see also Clinkscale v Sampson, 48 AD3d 730, 731 [2d Dept 2008]; Moran v Orth, 36 AD3d 771, 773 [2d Dept 2007]).

Wednesday, July 27, 2016

The U.S. Department of Education, Office of Civil Rights, has issued guidelines aimed at preventing schools from discriminating against the growing numbers of students with attention deficit hyperactivity disorder. In a letter to school districts and a “know your rights” document, the department said schools must obey existing civil rights law to identify students with the disorder and provide them with accommodations to help them learn.

Tuesday, July 26, 2016

"It is becoming more and more common for purchasers, attorneys, and lenders
to require more than just a note stating that a property built prior to
1938 without a Certificate of Occupancy can legally be used as intended. The NYC
Department of Buildings typically did not require a certificate of Occupancy
before January 1, 1938 to confirm the legal use of the property. In cases where
parties in a real estate transaction are worried about the legality of the
current usage of the property that was built prior to 1938, the DOB issues a
Letter of No Objection (LNO). This is a letter directly from the DOB stating
that they have no objection to the current usage of the property and a New
Certificate of Occupancy is not required.

Properties built before 1938 in Harlem and Upper Manhattan, as well areas
in Brooklyn, have seen a tremendous increase in value over the past ten years.
This trend has also increased the need for LNO's issued by the DOB. Because of
this, the City has formalized the process; however, it is still rather time
consuming and expensive. The cost to gather all the documents together and
submit the request to the city can be close to $1500.00 and take anywhere from
3-6 months to obtain. At TGI, Title Guarantee Inc., we have the experience and
the process to help obtain these LNO's in an efficient and timely
manner.

When investing a million dollars in a property, built prior to 1938, that
you believe is a legal three family residential dwelling, it is important to
obtain substantial proof that your intended use of the property is legal.
A tax classification can give you an idea of how usage of property is viewed by
the city but the Department of Finance and the Department of Buildings may not
always have their records in order and they may not be able to confirm.
Obtaining LNO's from the DOB will give you legal confirmation that your property
in question can legally be used as intended.

You might be interested to know you can get obtain a LNO for a property
that has an existing Certificate of Occupancy. For example, let's say the
property has a Certificate of Occupancy stating the property is a two family
dwelling. Currently it is being used as a one family dwelling. You can submit
for a LNO where the DOB states they do not object to the usage of the property
as a one family. It should be noted that if there is any increase in
usage to an existing Certificate of Occupancy, such as going from a two family
to a three family dwelling, usually requires a submission of plans to the
DOB.

For More information on why and how to obtain a LNO, please give us a
call.

Monday, July 25, 2016

Bye Bye Love was a 1995 American comedy-drama film that deals with the central issue of divorce and parenting time. If you ever saw the movie, you would have realized that production costs were underwritten by McDonald's product placement as one of the key plots was that the children were always picked up or dropped off at McDonald's.

According to one attorney, this is a great idea and states:

"These days, I see more court orders for
McDonald’s to be utilized as a pick-up/drop-off point for children than
anywhere else. McDonald’s serves the goal of having a public place that
is well-lit at night, and you are less likely to have a confrontation.
McDonald’s also has surveillance cameras deployed, and there are always
witnesses. Every parent seems to know the locations of every McD’s!"

Friday, July 22, 2016

The Consumer Credit Protection Act (CCPA) limits withholding for child support. The maximum that can be withheld may range from 50–65% of an employee or independent contractor's disposable income for support.

The New York Child Support Online
support program provides custodial parents with assistance in obtaining financial support and medical insurance coverage for their children by locating parents, establishing paternity, establishing support orders, and collecting and distributing child support payments.They also have a Withholding Limitations Worksheet for employers when they are served with an Income Withholding For Support Order (IWO).

Thursday, July 21, 2016

In matrimonial actions, Domestic Relations Law § 245 grants the court authority to punish a party for civil contempt pursuant to Judiciary Law § 756 where the party defaults "in paying any sum of money" required by a judgment or order, "and it appears presumptively, to the satisfaction of the court, that payment cannot be enforced" pursuant to the enforcement mechanisms provided in Domestic Relations Law §§ 243 and 244 and CPLR 5241 and 5242. "A civil contempt motion in a [matrimonial] action should be denied where the movant fails to make a showing pursuant to section 245 that resort to other, less drastic enforcement mechanisms had been exhausted or would be ineffectual'" (El-Dehdan v El-Dehdan, 114 AD3d 4, 23, affd 26 NY3d 19, quoting Capurso v Capurso, 61 AD3d 913, 914; see Wolfe v Wolfe, 71 AD3d 878, 879). Here, the mother did not attempt to utilize any less drastic enforcement mechanism before moving to hold the father in contempt, and failed to demonstrate that resort to a less drastic enforcement mechanism would be ineffectual. Contrary to the mother's contention, the fact that the child care, medical care, and extracurricular activity expenses she sought payment of were not for a sum certain did not prevent her from seeking to fix any arrears due for those expenses and enforcing the father's payment obligations through less drastic means. Under these circumstances, the Supreme Court properly denied those branches of the mother's motion which were to hold the father in civil contempt (see Belkhir v Amrane-Belkhir, 128 AD3d 1382, 1383; Wolfe v Wolfe, 71 AD3d at 879; Capurso v Capurso, 61 AD3d at 914; Rienzi v Rienzi, 23 AD3d 447, 449; Snow v Snow, 209 AD2d 399, 401), and for an award of an attorney's fee (see Cooper v Cooper, 21 AD3d 869, 871)."

Wednesday, July 20, 2016

Dr. Stacy Makhnevich at Aster Dental in New York City was able to
squeeze Lee in to treat his toothache. When Lee arrived, the dentist
required he sign a "mutual agreement to maintain privacy"—a
confidentiality agreement with a nondisparagement clause that waives
patients' rights to publicly comment on services and assigns copyright
to the provider. Anxious for treatment, Lee signed and slid into the
dentist's chair.

Though Lee found relief from his toothache, dealing with his
dentist over the bill—which totaled $4,766 for the filling—became a
pain. He complained about Makhnevich on Yelp and DoctorBase, another
online site, claiming the dentist overcharged him and did not furnish
the treatment records that would allow him to make an insurance claim
and be reimbursed.
Makhnevich fought back. Armed with the privacy agreement Lee signed,
she sent takedown notices to the websites hosting the complaints. She
then threatened to sue Lee, sending him invoices of $100 a day for
copyright infringement.

Lee returned fire. He filed suit against the dentist in the U.S.
District Court for the Southern District of New York, aiming to
invalidate the copyright claim.

“She charged him a lot of money. It was outrageous,” says Paul Alan
Levy, an attorney with the Public Citizen Litigation Group in
Washington, D.C., who works on online free speech issues and handled
Lee’s case. “What he wrote was true.”

More than four years after treatment, Lee won. The court, in its 2015
ruling, termed the privacy agreement null and void, calling the
contract “a deceptive act or practice in violation of New York General
Business Law,” which bars deceptive business practices. Lee was awarded
$4,766 in damages."

Tuesday, July 19, 2016

New York is the first state to require that all prescriptions be created electronically and to back up that mandate with penalties, including fines and imprisonment, for physicians who fail to comply. Practitioners are mandated to electronically prescribe both controlled and non-controlled substances effective March 27, 2016.

However, there are a number of exceptions in which a practitioner may issue an Official New York State prescription (ONYSRx) form, oral prescription or a fax of an ONYSRx.

Monday, July 18, 2016

PAGE VAULT software allows legal professionals to easily capture
webpage content (social media, corporate websites, blog posts) in a way
that is forensically defensible and legally admissible. With one click,
webpages are archived exactly as they appear online, key metadata is
automatically stored, and an easy-to-share output file is created.
Captures can be immediately downloaded or imported into standard
eDiscovery platforms.

Affidavits are also available that
attest to the patent-pending architecture that preserves an evidential
chain of custody. In addition to software solutions, Page Vault also
offers Collection Services to assist law firms with complex webpage and
website captures. This service is especially suitable for high-volume
capture projects, such as websites containing large numbers of pages.

Note: NYSBA members can save 10% for any month-to-month subscription, and 20% off for any annual subscription.

Friday, July 15, 2016

New York is a title state and it is generally assumed that to transfer title of a car belonging to the deceased, letters testamentary or administration are required - a probate of the estate.

But that is not true with respect to all transfers of a deceased vehicle owner. The following is from the New York State Department of Motor Vehicles website and applies to vehicles having a value of $25,000 or less:

" For transfers made by the surviving spouse 'According to the Estates, Powers & Trust Law of New York State,' the
owner of one vehicle that has a value of $25,000 or less automatically
transfers to the surviving spouse. If the surviving spouse wishes to
transfer ownership, they must print the decedent’s name in the “Seller’s
Name (Print in Full)” section on the back of the Title and sign their
name in the “Seller’s Signature” Section followed by the words “as
surviving Spouse”.

The ownership of one vehicle that has a
value of $25,000 or less transfers to the surviving children under the
age of 21 if there is no surviving spouse or the spouse is disqualified.
The spouse or the legal guardian of one of the children must sign the
title certificate. When the spouse or the guardian signs the title
certificate, they must indicate the relationship to the deceased owner. A
spouse writes the word "spouse" under the signature. A guardian writes
"guardian of", and the name and the relationship of the child to the
deceased owner (for example, "Charles Edwards, guardian of John Smith,
son").

To transfer ownership of the vehicle to another person, the spouse or guardian must complete an Affidavit for Transfer of Motor Vehicle
(MV 349.1). The form must be notarized. The spouse or guardian also
gives the new owner a photocopy of the death certificate or
certification of death. The DMV accepts a photocopy of the death
certificate or certification of death. When the new owner applies for a
vehicle registration or a title certificate, they must provide form
MV-349.1 and the copy of the death certificate or certification of
death."

Thursday, July 14, 2016

It's a phrase that means a mess from which there is no way of extricating oneself. It relates to the lake of Serbonis in Egypt, which by reason of the sand blowing into it had a deceptive appearance of being solid land, but was a bog. It is believed that in the past, whole armies had been lost in the lake.

In law, it is an expression used quite often. According to "Surveying the Serbonian Bog: A Brief History of a Judicial Metaphor
Summer, 2004,
28 Tul. Mar. L. J. 519 ny
Parker B. Potter, Jr.:

"...the phrase "Serbonian bog" has appeared in no fewer than 222 state and federal cases since 1847. The phrase has also been put to use by the authors of numerous law review articles......

As for the origins of the allusion, it has been written that "the first court use of Serbonian Bog was attributed to Justice Cardozo" who wrote that "the attempted distinction between accidental results and accidental means will plunge this branch of the law into a Serbonian Bog." While Justice Cardozo did not say where he had found the inspiration to refer to the Serbonian bog, my Westlaw search quickly revealed what Cardozo had not disclosed - the reference comes from .....John Milton's Paradise Lost"

"A gulf profound as that Serbonian bog...
Where armies whole have sunk.

Tuesday, July 12, 2016

Here, while the subject child, who was seven years old at the time
the order of custody was issued, had lived with the mother since birth,
the evidence adduced at the hearing established that the mother made
repeated and unfounded allegations of sexual abuse against the father.
As a result, the child was subjected to numerous examinations by
medical, law enforcement, Administration for Children's Services, and
mental health personnel, which have had a detrimental impact on the
child. These are acts "of interference with the parent-child
relationship so inconsistent with the best interests of the child as to
raise a strong probability that the mother is unfit to act as custodial
parent" (Matter of Fargasch v Alves, 116 AD3d 774, 775; see Matter of Goldfarb v Szabo, 130 AD3d 728, 729; Matter of Honeywell v Honeywell, 39 AD3d 857, 858; Matter of Tyrone G. v Lucretia S., 4 AD3d 205, 205).

There was a sound and substantial basis in the record for the Family
Court's determination, upon its consideration of the totality of the
circumstances, that the best interests of the subject child would be
served by, inter alia, awarding custody to the father."

Friday, July 8, 2016

"The mother and father, who were never married, are the parents of a
daughter, born on March 21, 2003. The father has been incarcerated since
August 2006. In January 2011, the Family Court issued an order awarding
sole custody of the child to the mother upon the father's consent. The
order did not address visitation or include a provision regarding
visitation. In April 2013, the father filed a petition pursuant to
Family Court Act article 6 seeking visitation with the child.

The father's initial petition stated that there had been no prior
order regarding visitation. In October 2013, after the parties had
appeared for several conferences, the father filed an amended petition,
in which he alleged that a change in circumstances had occurred since
the issuance of the January 2011 custody order. Specifically, the father
alleged that he had a lengthy telephone conversation with the child in
August 2013, and the child had expressed a desire to have a relationship
with him. The father clarified at further court appearances, which he
attended via video conference, that he sought supervised telephone
visitation and to communicate with the child by letter. The mother
opposed the father's amended petition and requested that the court
dismiss the proceeding due to the father's failure to adequately plead a
change in circumstances. After meeting with the child, the attorney for
the child joined in the mother's application to dismiss the father's
amended petition, asserting that the child said she did not want a
relationship with the father. Without holding a hearing, the Family
Court found that the father failed to sufficiently allege a change in
circumstances and dismissed the amended petition. The father appeals. We
reverse.

The Family Court erred when it utilized a change-in-circumstances
analysis in this [*2]case. The father's initial petition stated that he
was seeking an initial visitation determination and the record does not
reflect that there had ever been a judicial determination, or any
court-sanctioned arrangement, with respect to visitation. Since there
was no prior visitation order at the time this proceeding was commenced,
the court was required to consider the best interests of the child
under the totality of the circumstances, without regard to a change in
circumstances (see Eschbach v Eschbach, 56 NY2d 167, 174; Matter of
Land-Wheatley v Land-Wheatley, 108 AD3d 674; Matter of Burgess v
Burgess, 99 AD3d 797, 797; Matter of Gutkaiss v Leahy, 262 AD2d 681,
682; cf. Matter of Coull v Rottman, 131 AD3d 964, 964; Matter of Rambali
v Rambali, 102 AD3d 797, 799).

While, generally, a visitation determination should be made after a
full evidentiary hearing, a hearing is not necessary where the court
possesses adequate relevant information to make an informed and
comprehensive assessment of the child's best interests (see Matter of
Burgess v Burgess, 99 AD3d at 798; Matter of Johnson v Alaji, 74 AD3d
1202, 1202). Here, there was a lack of adequate relevant information
before the Family Court to permit a comprehensive, independent review of
the child's best interests. Thus, the court should have conducted a
hearing to fully assess the best interests of the child before deciding
the father's amended petition (see Matter of Bell v Mays, 127 AD3d 1179,
1180; Matter of Burgess v Burgess, 99 AD3d at 798; Matter of
Pettiford-Brown v Brown, 42 AD3d 541, 542). Accordingly, we remit the
matter to the Family Court, Suffolk County, for a hearing to determine
the best interests of the child and for a new determination of the
father's amended petition thereafter.

We express no opinion as to whether visitation is appropriate."

NOTE: AT this point, the child is 13 years old and, as noted in past blogs, a teenager's preference is extremely relevant.

Thursday, July 7, 2016

"The plaintiff father and the defendant mother were married in
December 2007. They have one child, a daughter, born in July 2008. The
father commenced this action for a divorce and ancillary relief in
November 2009.

At a hearing on temporary custody, both parties testified as to
instances of domestic violence that occurred on August 31, 2009, and
November 3, 2009. The Supreme Court found that the father had been the
victim of domestic violence. At a subsequent hearing regarding a family
offense petition filed by the mother, the court sustained the father's
objection to the mother offering more testimony regarding those
incidents. The court also granted the father's application to dismiss
the mother's family offense petition.
At the custody hearing, the father testified that he had been
employed by the Long Island Rail Road for 12 years. He testified that
both of his parents are retired, and that they help him raise the child.
The mother testified that both of her parents are deceased, and her
siblings live in Indonesia and Singapore. The mother admitted to leaving
the marital residence with the child on December 7, 2009, and further
admitted that she did not contact the father for the next two months to
ask if he wanted to see the child.

In the interlocutory judgment appealed from, the Supreme Court
awarded full custody of the child to the father. The court granted the
mother visitation every other weekend from Friday at 6:00 p.m. until
Sunday at 8:00 p.m., and dinner on every Wednesday from 6:00 p.m. until
8:00 p.m. The mother appeals.

The Appellate Division's authority in child custody cases is as broad
as that of the trial court (see Miller v Pipia, 297 AD2d 362, 364). The
essential consideration in making an award of custody is the best
interests of the child (see Eschbach v Eschbach, 56 NY2d 167, 171). "In
making an initial custody determination, the courts must consider the
best interests of the child by reviewing such factors as maintaining
stability for the child, the child's wishes, the home environment with
each parent, each parent's past performance, relative fitness, ability
to guide and provide for the child's overall well-being, and the
willingness of each parent to foster a relationship with the other
parent'" (Matter of Swinson v Brewington, 84 AD3d 1251, 1253, quoting
Matter of Anson v Anson, 20 AD3d 603, 604). "Since custody
determinations turn in large part on assessments of the credibility,
character, temperament and sincerity of the parties, the [trial]
[c]ourt's determination should not be disturbed unless it lacks a sound
and substantial basis in the record" (Matter of Chery v Richardson, 88
AD3d 788, 788). Moreover, the determination of visitation issues is
entrusted to the sound discretion of the trial court, and should not be
disturbed on appeal unless it lacks a substantial evidentiary basis in
the record (see Matter of Mera v Rodriguez, 73 AD3d 1069; Matter of
Thompson v Yu-Thompson, 41 AD3d 487, 488).

Here, the Supreme Court's determination awarding custody to the
father, with visitation to the mother, has a sound and substantial basis
in the record and will not be disturbed.

The mother's remaining contentions are without merit."

NOTE: The mother left the marital residence with the child - was she, albeit absent proof, also a victim of domestic violence?

Wednesday, July 6, 2016

It's the return of the time limits in SNAP for childless adults between the ages of 18 and 49. Beginning January 1, 2016, this group—referred to in SNAP regulations as Able-Bodied Adults Without Dependents (ABAWD)—will face a harsh and complicated time limit rule in NYS. The time limit rule requires that people identified as an “ABAWD” be limited to receiving SNAP benefits for three full months in any three year period unless they live in a waived area of the state, qualify for an exemption, or are meeting work requirements.

Friday, July 1, 2016

Grandparent alienation is real but not every case is black and white.
The facts in the following case illustrates a common deterioration of a family. Here, the relationship between the parents and the paternal grandparents deteriorated. Although we do not know the reasons for the dispute, we know that the grandparents had maintained regular contact with the child and his
siblings for many years before a dispute between the grandparents and
the parents led the children's parents to cease permitting such contact. The other note to point out is that the grandparents here are only seeking visitation rights with the one grandchild - and not with their other grandchildren (one hopes that perhaps the other grandchildren are 18 or over and have made their own decision to visit with the grandparents).

"The appellants are the parents of the subject child. The petitioners
are the paternal grandparents, who sought an order awarding them
visitation. The petition was granted over the objection of both
appellants, and this appeal followed.

" When a grandparent seeks visitation pursuant to Domestic Relations
Law § 72(1), the court must make a two-part inquiry'" (Matter of
Moskowitz v Moskowitz, 128 AD3d 1070, 1070, quoting Matter of Brancato v
Federico, 118 AD3d 986, 986; see Matter of Gray v Varone, 101 AD3d
1122, 1123). "First, it must find that the grandparent has standing,
based on, inter alia, equitable considerations" (Matter of Gray v
Varone, 101 AD3d at 1123; see Matter of Moskowitz v Moskowitz, 128 AD3d
at 1070; Matter of Brancato v Federico, 118 AD3d at 986). "If it
concludes that the grandparent has established standing to petition for
visitation, then the court must determine if visitation is in the best
interests of the child" (Matter of Gray v Varone, 101 AD3d at 1123; see
Matter of E.S. v P.D., 8 NY3d 150, 157; Matter of Moskowitz v Moskowitz,
128 AD3d at 1070).

"In considering whether a grandparent has standing to petition for
visitation based upon circumstances show[ing] that conditions exist
which equity would see fit to intervene' (Domestic Relations Law §
72[1]), an essential part of the inquiry is the nature and extent of
the grandparent-grandchild relationship,' among other factors" (Matter
of Lipton v Lipton, 98 AD3d 621, 621, quoting Matter of Emanuel S. v
Joseph E., 78 NY2d 178, 182; see Matter of Moskowitz v Moskowitz, 128
AD3d at 1070). The court must also consider " the nature and basis of
the parents' objection to visitation'" (Matter of Bender v Cendali, 107
AD3d 981, 982; quoting Matter of Emanuel S. v Joseph E., 78 NY2d at 182;
see Matter of Brancato v Federico, 118 AD3d at 986). "In cases where
such a [grandparent-grandchild] relationship has been frustrated by a
parent, the grandparent must show, inter alia, that he or she has made a
sufficient effort to establish [a relationship with the child], so that
the court perceives [the matter] as one deserving the court's
intervention" (Matter of Brancato v Federico, 118 AD3d at 987 [internal
quotation marks omitted]; see Matter of Emanuel S. v Joseph E., 78 NY2d
at 182). " The evidence necessary will vary in each [*2]case but what is
required of grandparents must always be measured against what they
could reasonably have done under the circumstances'" (Matter of Bender v
Cendali, 107 AD3d at 982, quoting Matter of Emanuel S. v Joseph E., 78
NY2d at 183; see Matter of Lipton v Lipton, 98 AD3d at 622).
Here, the Family Court providently exercised its discretion in
determining that the paternal grandparents had standing to petition for
visitation pursuant to the equitable circumstances clause of Domestic
Relations Law § 72(1) (see Matter of Quinn v Heffler, 102 AD3d 876, 876;
Matter of Gort v Kull, 96 AD3d 842, 843). Through their testimony and
the photographic evidence they submitted, the grandparents established
that they had maintained regular contact with the subject child and his
siblings for many years before a dispute between the grandparents and
the parents led the children's parents to cease permitting such contact
(see Matter of Gray v Varone, 101 AD3d at 1123; Matter of Gort v Kull,
96 AD3d at 843; Matter of Dubiel v Schaefer, 108 AD3d 1093, 1095; Matter
of Agusta v Carousso, 208 AD2d 620, 621).

Standing to petition alone, however, does not ensure that grandparent
visitation will be granted. As stated previously, the Family Court must
also find that such visitation is in the best interests of the subject
child (see Matter of Wilson v McGlinchey, 2 NY3d 375, 380). In making
this determination, "courts should not lightly intrude on the family
relationship against a fit parent's wishes," as "[t]he presumption that a
fit parent's decisions are in the child's best interests is a strong
one" (Matter of E.S. v P.D., 8 NY3d at 157). "[W]hile . . . the problems
created by parent-grandparent antagonism cannot be ignored, an
acrimonious relationship is generally not sufficient cause to deny
visitation" (id. at 157; compare Matter of E.S. v P.D., 27 AD3d 757,
758-759, affd 8 NY3d 150, with Matter of Wilson v McGlinchey, 2 NY3d
375, 382 and Matter of Coulter v Barber, 214 AD2d 195, 197).

Applying these principles here, and considering the Family Court's
assessment of the credibility of the witnesses (see Matter of Quinn v
Heffler, 102 AD3d at 876), the Family Court providently exercised its
discretion in determining that it was in the best interests of the
subject child to grant the grandparents' petition for visitation (see
Matter of Luft v Luft, 123 AD3d 831, 832).

The parents' remaining contentions are either without merit or not properly before this Court.

Accordingly, the Family Court properly granted the grandparents' petition for visitation with the subject child."

Subscribe To A Lawyer's Blog - JMP Esq.

Follow by Email

Jon Michael Probstein, Esq.

About Me

Since 1977, my practice consisted of representing and assisting people and businesses in all matters, including public and private corporations, on both a civil and criminal level. My services have included public offerings, proxy fights, securities regulation, all phases of civil and criminal litigation, family law, estate law, guardianships, negotiation and drafting of a wide variety of agreements and transactions, in addition to general advice with regard to the customs and practices within various industries. I was also a Guest Commentator on COURT TV and an arbitrator. I am admitted to practice in New York and the federal courts, Southern and Eastern District, as well as the Second Circuit Court of Appeals. Currently, I am special counsel to law firms in Los Angeles and New York, as well as operating my own office in Nassau County. I regularly perform pro bono work for the Volunteer Lawyers Project, Nassau/Suffolk Law Services, Inc. and the NYS Unemployment Insurance Appeals Board and I am a member of the LAP Committee of the Nassau County Bar Association. I also have a blog that discusses common legal problems which you can visit at http://jmpattorney.blogspot.com/